JUDGMENT A.N. Jindal, J.:-This appeal determines the validity of the judgment dated 29.5.1996 passed by the learned Additional Sessions Judge, Ambala, whereby the accused-appellant Baljit Singh (hereinafter referred to as ‘the accused’) was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’), for keeping in his possession 1.850 kgs of Charas illegally. 2. Briefly stated the facts of the case as unfolded by the prosecution are that on 4.11.1993, Rajinder Singh, Deputy Superintendent of Police, Naraiangarh had come to Ambala City for official work. On that day he received a secret information that the accused and two more persons namely Joginder Singh and Jaspal Singh were indulging in the sale of opium. Upon which, he contacted Superintendent of Police, Ambala and thereafter, at about 8.00 AM, at his instance he along with the police force, Inspector Chaudhary Ram and public witnesses namely Gurdev Singh and Sant Mohan Singh raided and searched the house of the accused. From the search of bed room of his residential house, at the first floor, he recovered 1.850 kgs of charas wrapped in the polythene paper and concealed under the quilt from the bed. After drawing two samples of 50 grams each,the same were converted into parcels, thereafter the parcels containing samples as well bulk opium, were sealed with the seal baring impression “RS” and “CR” and the same were taken into possession vide memo Ex.PA. Ruqa Ex.PB was sent to the police station on the basis of which FIR Ex.PB/1 was recorded. Site plan Ex.PF was prepared; special report Ex.PG was submitted; samples were sent to the Forensic Science Laboratory for analysis and on completion of the investigation, the accused was challaned. 3. Consequently, charge under Section 20 of the Act was framed against the accused to which he opted to contest. 4. In order to substantiate the charge against the accused, the prosecution examined Sant Mohan Singh (PW1), Inspector Chaudhary Ram (PW2), ASI Mool Chand (PW3), HC Kartar Singh (PW4), C. Satyawan Singh (PW5) and DSP Rajinder Singh (PW6). After giving up PW Gurdev Singh, the prosecution closed its evidence. 5. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. After giving up PW Gurdev Singh, the prosecution closed its evidence. 5. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further added that two days prior to his arrest, he was illegally detained by the CIA Staff and was falsely implicated. He was living on the ground floor and not on the first floor. He is milk vendor and never indulged in such activities but due to enmity, he was falsely implicated in the case. After producing copy of the judgment dated 15.7.1994 Ex.D1, copy of the calendra Ex.D2 and copy of another judgment mark-A, the accused closed his defence. 6. Ultimately, the trial ended in conviction. Hence this appeal. 7. Arguments heard. Records perused. 8. The prosecution case suffers from serious legal infirmities and the question of exclusive possession of the contraband is also in dispute. The present case is based on secret information received by DSP Rajinder Singh, who has also stated that he informed about this information to the Superintendent of Police, Ambala, who had directed him to collect the police and raid the house of the accused. He, while appearing in the court as PW-6, has not stated if he reduced the said information into writing, nor has proved any such writing disclosing the fact that the information so reduced into writing was reliable and sent to the officers superior to him. Superintendent of Police, Ambala, who was contacted by him has also not been examined. Thus, there is a clear cut violation of Section 42 (1) of the Act. Section 42 (1) of the Act reads as under :- “42. Superintendent of Police, Ambala, who was contacted by him has also not been examined. Thus, there is a clear cut violation of Section 42 (1) of the Act. Section 42 (1) of the Act reads as under :- “42. Power of entry, search, seizure and arrest without warrant or authorisation - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building conveyance or enclosed place, may between sunrise and sunset - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c)seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.” 9. On bare reading of the Section 42 of the Act, it transpires that it authorises an officer of the departments enumerated therein who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, if he has reason to believe from personal knowledge and information given by any person and taken down in writing that any narcotic or psychotropic substance etc. is kept or concealed in any building, conveyance or enclosed place. This power can be exercised freely between sunrise and sunset but between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. In this case, DSP Rajinder Singh (PW6) received the secret information at about 6.00 AM and certainly raided the premises before sunrise. No search warrants were obtained by him. He did not reduce the secret information into recording that (a) information was reliable to his belief (b) the raid if conducted after spending time for seeking warrants, there may be chances of failure or frustration of the purpose. He also not send the said information report to his officers superiors before making search of the premises on the basis of the secret information, therefore, the search stands vitiated. 10. I am fortified qua this aspect of the case by the judgment delivered by the Hon’ble Apex Court in case State of West Bengal and others vs. Babu Chakraborty, AIR 2004 Supreme Court 4324, wherein it was observed as under :- “21. 10. I am fortified qua this aspect of the case by the judgment delivered by the Hon’ble Apex Court in case State of West Bengal and others vs. Babu Chakraborty, AIR 2004 Supreme Court 4324, wherein it was observed as under :- “21. In the case of State of Punjab vs. Baldev Singh (1999) 6 SCC 172, a Constitution Bench of this Court observed in paragraphs 9 and 10 as under :- “Sub-section (1) of S. 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily taken it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of S. 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of S. 43 and S. 42 is that whereas S. 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure. Section 43 does not contain any such provision and as such while acting under S. 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” 22. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” 22. Great significance has been attached to the mandatory nature of the provisions keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to the Court of law and the accused while defending his prosecution. This Court also held that failure to comply with S. 42 (1), proviso to S. 42 (1) and S. 42 (2) would render the entire prosecution case suspect and cause prejudice to the accused.” 11. The next flank of the argument advanced by the learned counsel for the accused is that the premises in question, from where the recovery is alleged to have been effected, was not in exclusive possession of the accused, therefore, he could not be said to be in conscious possession of the contraband allegedly recovered from the boxes of the bed. Even the ownership of the appellant over the house has not been established. It has been admitted by DSP Rajinder Singh (PW6) that no documentary evidence to the effect that the accused was the owner of the said portion of the house was collected. He has further admitted that the said house consisted four portions and each portion was occupied by all of his brothers. He has further stated that besides the accused, his wife and children were also in the house. Not only this, the witness so joined by the prosecution namely Sant Mohan Singh has admitted that besides the aforesaid persons, an old man and a lady were also present in the house. Thus, the accused cannot be said to be in exclusive possession of the contraband. Even Inspector Chaudhary Ram (PW2) has stated that when they entered the bed room of the accused, his wife and minor son were sitting on the double bed. An old man and a woman were also present on the ground floor of the said house, in their room. 12. Even Inspector Chaudhary Ram (PW2) has stated that when they entered the bed room of the accused, his wife and minor son were sitting on the double bed. An old man and a woman were also present on the ground floor of the said house, in their room. 12. Thus, on appreciation of the evidence of Sant Mohan Singh (PW1), Inspector Chaudhary Ram (PW2) and DSP Rajinder Singh (PW6), it comes out that it is a big house divided into four portions and each portion is occupied by the brothers of the accused. The portion, where the accused is alleged to have been residing, is also occupied by his wife and minor son. One old man and a women were residing on the ground floor of the house, therefore, a serious doubt is created over the conscious possession of the contraband in the boxes of the double bed lying in the room. None of the documents have been produced on the record in order to show if the accused was the owner of the house. There is no evidence to establish if the occupants of the other portions could not have access to the portion allegedly occupied by the accused and his children. There is also not evidence to establish that the portion allegedly occupied by the accused was quite independent and beyond the access of the other joint owners. 13. The matter does not end here. No witness from the locality was examined as required under Section 50 of Cr.P.C. Sant Mohan Singh (PW1) has stated that his house is at a distance of 2 kms from the house of the accused. The house of Gurdev Singh (not examined) was situated near Ghas Mandi and is at a distance of less than 1 km from the Police Post No.3. There is nothing to dispute that the house in question was surrounded by numerous houses but none of the neighbours was called in order to attest the recovery memo. 14. In any case, the testimony of Sant Mohan Singh (PW1), so examined by the prosecution, also does not inspire confidence of the court. He appears to be stooge of the police. He admits having already appeared in two other cases relating to the members of the family of the accused. 14. In any case, the testimony of Sant Mohan Singh (PW1), so examined by the prosecution, also does not inspire confidence of the court. He appears to be stooge of the police. He admits having already appeared in two other cases relating to the members of the family of the accused. He further admits that two years prior to that, he had appeared as a witness relating to the recovery of charas. It is not known as to why this witness was selected by the police when he was already inimical to the accused. Even otherwise, his testimony is infested with serious contradictions. According to DSP Rajinder Singh (PW6), he entered the house through the main gate at about 6.30 AM and he was freed at about 11.30 AM or 12.00 noon, whereas, Inspector Chaudhary Ram (PW2) states that they had reached the house of the accused at 7.30 AM. Despite the contradiction regarding time of visit, it highlights that DSP Rajinder Singh (PW6) did not accompany the police party at the time of raiding the house of the accused. 15. Having perused the trial court judgment, it transpires that the aforesaid contradictions and illegalities have not been taken note of by the trial court while slapping conviction upon the accused, therefore, interference at my end has become inevitable. 16. Consequently, I accept the appeal, set aside the impugned judgment and acquit the accused of the charge framed against him. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded. Mr. Brijeshwar Singh Kanwar, Advocate Amicus Curiae may claim his remuneration as per rules. ————————